October

Lack of consistency in assessing Deprivation of Liberty

Examinations into judgements made about deprivation of liberty have shown strong disparities between professionals’ interpretation of the Deprivation of Liberty Safeguards (DoLS) and highlight the high level of disagreement between mental health lawyers. The findings were published in two papers by researchers at the Institute of Psychiatry (IoP) at King’s College London.

DoLS are part of the Mental Capacity Act. The legislation was designed to authorise the use of coercion for individuals usually in a health or social care organisation who lack mental capacity and can only be cared for by depriving the individual of his or her liberty. Therefore, they may apply to a potentially huge population of people with dementia, learning disabilities and mental health problems who lack mental capacity to make decisions about where they live or the care they receive.

The first study published in The Psychiatrist looked at the level of agreement between psychiatrists, mental health lawyers, best interest assessors and independent mental capacity advocates involved in making deprivation of liberty (DoL) assessments. They were each presented with 12 vignettes detailing real-life clinical situations and asked to answer yes or no as to whether the case amounted to DoL. There was total agreement between all four groups in only one of the 12 cases. The majority of the cases attracted a range of different judgments. Importantly, the degree of agreement between mental health lawyers was no better than chance.

The second study, published in Medicine, Science and Law, examined in greater depth how expert lawyers interpret the DoL legislation and found their views diverged from the DoLS Code of Practice. Expert lawyers attributed key importance to whether a patient was free to leave and suggested that patients’ subjective experiences should be considered when identifying DoL.

Dr Ruth Cairns, lead author of both studies at the IoP at King’s and consultant psychiatrist at the South London and Maudsley NHS Foundation Trust, says: ‘We found that the lawyers had very different views as to whether cases amounted to deprivation of liberty. This is particularly worrying since the Code of Practice for the DoLS clearly states that deprivation of liberty is ultimately a legal question, and our research suggests no real consistency between expert lawyers’ judgements.’

The first annual data on DoLS from 2009-2010 showed that out of 7,160 cases for deprivation of liberty considered only 3,300 were authorised - about a third of the level estimated before the introduction of the safeguard.

Dr Cairns explains: ‘The reasons for the low use of DoLS are unclear. It may be that fewer people than previously thought receive care or treatment that involves deprivation of liberty, but the number and rate of applications vary hugely between different areas suggesting wide variations in local practices and interpretations of the legislation.’

Prof Matthew Hotopf, lead investigator of the study at the IoP at King's adds: ‘Our findings raise serious concerns about the complexity of the DoLS legislation, and particularly about the practical difficulties involved in making reliable deprivation of liberty judgements within the legislation. There is a real concern therefore, that DoL authorisations may be inconsistently applied resulting in unequal levels of safeguarding for potentially vulnerable, incapacitated individuals. The results suggest that the current legal definitions are practically impossible to apply in real life settings.’

The authors thanked the lawyers and mental health professionals for their time and expertise as well as the patients and ward staff involved.

For full papers: Cairns, R. et al. ‘Mired in confusion: making sense of the deprivation of liberty safeguards’, Medicine, Science and Law (October 2011) doi: 10.1258/msl.2011.010122

Cairns, R. et al. ‘Judgements about deprivation of liberty made by various professionals: comparison study’, The Psychiatrist (2011) doi: 10.1192/pb.bp.110.033241